Delaware Intellectual Property Litigation Blog

MAY 15, 2021

May 7, 2021), the Court granted Natera’s motion to exclude at trial the opinions of CareDx’s damages expert relating to “corrective advertising damages.” 1117(a)(2), a successful false advertising plaintiff can recover the costs of any completed advertising that actually and reasonably responds to the defendant’s offending ads.’” Id.

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False Advertising Advertising Advertising Copying 45

43(B)log

SEPTEMBER 20, 2021

Each webpage that contained one of McCleese’s photos also contained Natorp’s own trademark and copyright symbols at the top and bottom. Along with copyright claims, McCleese asserted Lanham Act false advertising claims. Now do trademark standing.) The parties disagree about how and whether they were authorized to do so.

Copying 64

Copying False Advertising Social Media Advertising 64

Technology & Marketing Law Blog

JANUARY 8, 2024

This is a case involving a trademark owner and a competitive keyword advertiser. The trademark owner memorably (and ridiculously) characterized the rival as engaging in “keyword conquesting,” a term I encourage you never to use. The court already sent that trademark claim to the jury ( my blog post on that ruling ).

Trademark 78

Trademark Advertising Advertising False Advertising 78

43(B)log

JANUARY 27, 2023

26, 2022) [much other stuff skipped] The parties had a false advertising dispute that went to a jury, which found that FIGS wasn’t liable for falsely advertising the antimicrobial properties of its scrubs. FIGS’ alleged copying of SPI’s products was not relevant to false advertising.

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False Advertising Advertising Advertising Trademark 59

43(B)log

DECEMBER 1, 2022

OSD Audio then sued Outlaw under §512(f), and Outlaw counterclaimed for false advertising and unfair competition under the Lanham Act, copyright infringement, and trade libel. Lanham Act: The user manual did not constitute “commercial advertising or promotion.” Thus, Outlaw showed likely success on the merits of this claim.

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Advertising Advertising False Advertising Copyright 64

Technology & Marketing Law Blog

AUGUST 30, 2023

This is a competitive keyword advertising lawsuit. The plaintiff has a trademark registration for the “Nursing CE Central” mark for providing continuing education for nurses. A rival, Colibri, displayed in the trademark in its Google keyword ads, but it claims it has stopped doing so after the lawsuit was filed. Not relevant.

Advertising 86

Advertising Advertising False Advertising Trademark 86

43(B)log

JANUARY 27, 2023

Steeplechase has a copyright for the book, “Piano Book for Adult Beginners: Teach Yourself How to Play Famous Piano Songs, Read Music, Theory & Technique” and registered trademark rights in STEEPLECHASE ARTS & PRODUCTIONS for, among other things, music instruction books, including for the Piano Book. Was this literally false?

Derivative Work 75

Derivative Work False Advertising Advertising Advertising 75

IPilogue

DECEMBER 15, 2022

Vogue’s publishers have sued rappers Drake and 21 Savage for unauthorized use of Vogue’s trademarks and false representations in marketing their newest album, “Her Loss”. On November 17, 2022, Drake and 21 Savage agreed to this preliminary injunction and also agreed to stop using Vogue trademarks for their album promotion.

Social Media 105

Social Media False Advertising Copying Trademark 105

43(B)log

JULY 3, 2023

27, 2023) Industria sued Latinfood for trademark and copyright infringement; Latinfood counterclaimed for tortious interference against Industria and another counterdefendant Cordialsa. Advertisements made for Latinfood Zenú products used the phrase “una deliciosa tradición,” which translates to “a delicious tradition.” Latinfood U.S.

False Advertising 59

False Advertising Advertising Advertising Registration 59

TorrentFreak

JANUARY 26, 2024

Besides the sticker promos, the plaintiffs also ran into several advertisements on Facebook and even flyers in physical stores throughout Atlanta. Flyers As shown above, these flyers advertised the IPTV streaming service as an “Authorized Retailer” for Dish and Sling, which people could “WATCH FOR $7/mo.”

Cease and Desist 92

Cease and Desist False Advertising Advertising Advertising 92

43(B)log

AUGUST 26, 2022

24, 2022) This seems like a silly result to me, shifting the burden to comparative advertisers, but it's often much harder to get summary judgment in a trademark case than in comparable cases. And Peninsula cited a prior trademark prosecution by PennEngineering for admissions that the product design is functional.

False Advertising 59

False Advertising Advertising Advertising Trademark 59

43(B)log

MARCH 10, 2023

14, 2023) Plaintiffs sued defendants for state and federal trademark infringement and related claims. Plaintiff WATL is allegedly the preeminent governing body and league for the sport of axe throwing and uses the trademark “WATL” to market and publicize the axe throwing league. Toyota, 610 F.3d 3d at 1177.

Fair Use 69

Fair Use False Advertising Social Media Advertising 69

43(B)log

NOVEMBER 28, 2022

2, 2022) Before the jury verdict in favor of Monster’s false advertising claim was this opinion resolving evidentiary issues. The Ninth Circuit has stated that surveys in trademark cases are to be admitted as long as they are conducted according to accepted principles” and “relevant.” Monster Energy Co. 2022 WL 17218077, No.

False Advertising 59

False Advertising Advertising Advertising Social Media 59

43(B)log

JULY 20, 2022

CC has a recent trademark registration for a design mark “consist[ing] of the stylized wording ‘COLOR COPPER.COM”, [with] a diamond shape between the wording ‘COLOR’ and ‘COPPER’ made up of four smaller diamonds, each diamond having a pattern inside of it,” COPPER.COM disclaimed. “The There’s no written agreement” will do it.] 1” therein.

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False Advertising Ownership Registration Designs 72

43(B)log

DECEMBER 23, 2022

Although expressing some skepticism, the court found that they stated a valid false advertising claim. But buying a limited-time license to stream a digital copy of Yesterday was neither a tangible good nor a service under the CLRA. They allegedly watched the movie because they wanted to see De Armas and the scene in the movie.

False Advertising 72

False Advertising Advertising Advertising Social Media 72

SpicyIP

OCTOBER 27, 2023

Interface interference is a tactic that hinders consumers from performing actions like cancelling subscriptions or deleting accounts, such as redirecting them to another page while trying to cancel a pop-up advertisement. This can deceive users and harm the reputation of the original trademark owner.

Intellectual Property 52

Intellectual Property False Advertising Designs Design 52

The IPKat

JUNE 27, 2022

On 24 June 2022, BAYC sued Ryder Ripps, a conceptual artist and NFT creator for trade mark infringement, unfair competition, false advertising, cybersquatting and other cause of actions before the Central District of California. This is a U.S Yuga Labs, therefore, still owns the copyright in each NFT. Ether (USD 1+ million).

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Non-Fungible Tokens Contracts Copying Art 135

Delaware Intellectual Property Litigation Blog

SEPTEMBER 25, 2021

September 24, 2021), the Court (1) denied Plaintiff Apex Clearing Corporation’s motion to exclude the expert testimony of defendants’ experts Mumford and Distler; (2) denied Plaintiff Axos Bank’s motion for summary judgment on four counts of trademark infringement; (3) denied defendants/counter-plaintiffs Axos Financial, Inc. Renosky , 399 F.3d

Trademark 66

Trademark Advertising Advertising Copying 66

43(B)log

SEPTEMBER 7, 2021

The claim for cancellation of the ‘675 Mark was based on fraud in obtaining the trademark registration and misrepresentation of source, whereas their claim for cancellation of the ’549 and ’077 Marks was based on misrepresentation of source alone. Chunma USA, Inc., 2021 WL 1534988, No. 20-CV-0271 (JMF) (S.D.N.Y. and [the] Coach” brand.

False Advertising 59

False Advertising Registration Trademark Registering Trademarks 59

Technology & Marketing Law Blog

SEPTEMBER 28, 2021

Instead of protecting consumers, this bill gives trademark owners absolute control over online marketplaces by overturning Tiffany v. Because the bill makes it impossible for online marketplaces to avoid contributory trademark liability, this bill will drive most or all online marketplaces out of the industry.

Trademark 136

Trademark False Advertising Advertising Advertising 136

43(B)log

JANUARY 17, 2023

As part of preliminary discussions with Vubiquity about a distribution agreement for iTunes, LW provided master copies of all 60 episodes, but no agreement was ever reached. False advertising: Sybersound Recs., Nonetheless, Vubiquity allegedly uploaded the series to iTunes for sale and download. 3d 1137 (9th Cir.

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False Advertising Ownership Copyright Copying 59

43(B)log

MAY 22, 2023

May 19, 2023) Whereas the timeshare false advertising cases might be making law largely applicable to other timeshare cases, what’s going on in the strip club advertising cases might have somewhat broader implications. The district court concluded that plaintiffs’ false endorsement claims were foreclosed by Electra v.

Social Media 49

Social Media False Advertising Advertising Advertising 49

Delaware Intellectual Property Litigation Blog

NOVEMBER 7, 2021

as to the affirmative defenses of laches, acquiescence, and statute of limitations of Defendants as to Defendants’ allegedly infringing use of the EMERSON QUIET KOOL trademark. A copy of the Memorandum Order is attached. November 5, 2021), the Court granted the motion for partial summary judgment of Plaintiff Emerson Radio Corp.

Trademark 66

Trademark Copying Law False Advertising 66

43(B)log

SEPTEMBER 27, 2021

However, Miller alleged that the generic avatar was an “exact copy” of him, and easily identifiable as him. False endorsement: Rogers applies; realism is artistically relevant. “[T]here False advertising: Miller failed to plead statutory standing. Compare trademark claims!] He didn’t compete with defendants.

False Advertising 45

False Advertising Advertising Advertising Copying 45

43(B)log

OCTOBER 4, 2021

Defendants' letter allegedly copied text from LStar Trademark infringement: LStar never specified what its trademarks or service marks were. It argued that defendants copied, but didn’t identify a particular word, name, or symbol, or combination thereof, within the highlighted paragraphs, as the alleged trademark(s).

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

AUGUST 17, 2021

Lexmark has crept into §43(a)(1)(A) via false endorsement; it will be interesting to see whether courts recognize that other trademark claims are likewise subject to a proximate cause requirement by that logic. 2021), which considered all these claims except for false advertising. The court was guided by Electra v.

Social Media 59

Social Media False Advertising Advertising Advertising 59

LexBlog IP

NOVEMBER 17, 2021

collectively, “ Kaira ”) commenced an action alleging passing off, trademark infringement, depreciation of goodwill and copyright infringement by, Amul Canada, Mohit Rana, Akash Ghosh, Chandu Das, And Patel Patel (collectively, the “ Defendants ”). Kaira also established trademark infringement.

False Advertising 40

False Advertising Social Media Trademark Branding 40

IP and Legal Filings

APRIL 28, 2022

Tiffany filed the present application against Costco two months after it stopped using the “Tiffany” mark in the District Court for the Southern District of New York, alleging trademark infringement, counterfeiting false advertising among other things. It rejected Tiffany’s claim of trademark counterfeiting. ” Id.

Fair Use 52

Fair Use False Advertising Trademark Branding 52

43(B)log

DECEMBER 28, 2022

17, 2022) Along with the headline-worthy nature of the claim (“ITALY’S #1 BRAND OF PASTA” plausibly falsely communicates Italian origin), the decision contains an extended discussion of judicial notice on a motion to dismiss v. incorporation of documents into the complaint by reference, both often significant in false advertising cases.

Branding 59

Branding Brands Branding False Advertising 59

IIPRD

AUGUST 4, 2022

Trademarks. The easiest method to accomplish this is to register a trademark. Trademarks encompass Instagram handles, YouTube channels, and user names on numerous social media sites. False advertising should be avoided when defaming a product. Obtain legal ownership verification. Make intangible assets.

Social Media 45

Social Media Intellectual Property Non-Fungible Tokens Music 45

43(B)log

AUGUST 3, 2023

So too w/false advertising. Advertising: false endorsement potential. Assumptions skipped over in TM/false advertising analysis.] Dustin Marlan, Trademark Disclosure TM registration requires disclosures just as patent does: undertheorized. Death closes things off.

Registration 52

Registration False Advertising Advertising Advertising 52

43(B)log

DECEMBER 1, 2022

Grimaldi grounds, the district court’s grant of summary judgment to MTV on the resulting trademark claims. But Plaintiffs contend they ‘verbally’ licensed their trademark to Kenny Chesney and the company that represents him, Blue Chair Bay Records, and then Blue Chair Bay Records sublicensed the rights to Viacom for the broadcast on CMT.”

Artistic Work 64

Artistic Work Television Trademark Trademark Law 64

43(B)log

MARCH 6, 2024

1, 2024) NYU Langone sued Northwell for trade dress infringement, unfair competition and false designation of origin, and false advertising under the Lanham Act, as well as related claims under the New York GBL and New York common law. The court dismissed the complaint—the false advertising claims with prejudice.

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False Advertising Advertising Advertising Reporting 59

Technology & Marketing Law Blog

JUNE 29, 2022

17 years later, I’m still blogging their ignoble trademark lawsuits. Some “highlights” of 1-800 Contacts’ trademark jurisprudence over the years: 1-800 Contacts v. Unfortunately, that’s standard operating procedure in trademark cases. WhenU (2d Cir. Keyword Ads. Proximity of goods. Jand, Inc. ,

Trademark 106

Trademark Advertising Advertising Blogging 106

43(B)log

MARCH 21, 2022

Bimbo sells Grandma Sycamore’s Home-Maid Bread; it sued defendants, who include the baker who developed the Grandma Sycamore’s recipe, for trade secret misappropriation, trade dress infringement, and false advertising when it sold a comparable bread product, Grandma Emilie’s, with the tagline “Fresh.

False Advertising 72

False Advertising Advertising Advertising Designs 72

43(B)log

AUGUST 18, 2021

29, 2021) This is part of a long-running trademark case, now over 10 years old. were valid and infringed, but the latter wasn’t counterfeited; SMRI’s dilution victory was vacated, but not its victories on deceptive trade practices, ACPA, false advertising, and unfair competition. Sturgis Motorcycle Rally, Inc.

Cease and Desist 64

Cease and Desist False Advertising Registration Licensing 64

Technology & Marketing Law Blog

SEPTEMBER 14, 2021

But trademark plaintiffs and judges are still partying like it’s 1999. Defendant has also used Plaintiffs’ trademarks “Seeking Millionaire,” “Seeking Arrangement,” “Whats Your Price,” “Carrot Dating,” and “Seeking” as search terms in the Apple Appstore and Google Play Store to yield LuxyApp as a search result.

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Advertising Advertising Trademark Settlement 99